Steph Hodgins-May (Victoria, Australian Greens) | Link to this | Hansard source

The question is that the bill stand as printed.

Jordon Steele-John (WA, Australian Greens) | Link to this | Hansard source

by leave—I move Australian Greens amendments (1) to (6) on sheet 3832:

(1) Clause 2, page 2 (table item 3), omit the table item.

(2) Schedule 1, Part 4, page 12 (line 1) to page 14 (line 24), to be opposed.

(3) Schedule 1, item 45, page 16 (line 28) to page 17 (line 2), omit subsection 38(3).

(4) Schedule 1, item 50, page 18 (lines 5 to 10), omit the note.

(5) Schedule 1, item 68, page 26 (lines 1 to 26), to be opposed.

(6) Schedule 3, item 11, page 95 (line 12), omit "subsections 34A(2) and 34B(4)", substitute "subsection 34B(4)".

This bill gives the Minister for the National Disability Insurance Scheme unchecked powers to slash people's supports—the supports that they rely on to live day to day. This ministerial power granted by this legislation is unprecedented. Let's be really clear about what is happening here: through this legislation, a minister in Canberra will take into their hands the power to slash the supports relied on by disabled people to go beyond their doorstep to buy groceries with the support of a support worker, to be able to go out and see their family members, to be able to pursue a higher education or to upskill themselves through a tertiary process. It's about living.

The official name given to these supports is 'social and community participation', but really that's just bureaucratic language. This funding enables you to live your life, to live a life with meaning. We have heard so clearly, through the course of the inquiry into this bill, that it would be inappropriate for these powers to be held in the hands of a politician here in Canberra. But to cut these supports for disabled people by 50 per cent, as is intended by this government, will do incredible harm to disabled people and our families. It will result in so many of us being placed back within the very types of closed settings that we so desperately fought for so long to leave.

During the course of this inquiry, during the course of the community debate on this bill, the Labor senators and ministers and the Prime Minister have been told over and over again by disabled people how it feels to us when people have power over our lives while knowing nothing about what that life looks like. They've shared that that has been their experience in the past. They've plead with the parliament not to make it their life in the future. And yet here we see a Labor Party and a Liberal opposition appearing to come together and unite in a grand act of dismissal. We've heard over and over again that the concerns that the community have about these powers are just anxieties. 'Really, these cuts won't be so big. It won't be so bad. We'll use discretion. We'll use good judgement.' This has been the line from the government.

Let me be really clear. The inquiry heard from people who have already experienced massive cuts to the supports that they require to be able to go outside. We heard in Western Australia from a participant who had been funded for 41 hours a week of this community support—somebody to help them go and get their groceries, somebody to help them live their life and move around outside, beyond their doorstep, safely. That person was recently subjected to a review, and that review cut her funding from 41 hours a week to four hours a week. Do you know the excuse they gave her? They said: 'Your family should be providing this informal support. They should be able to help you do these things. You live near your family; they should help you.'

Regardless of how close they live together, it's completely inappropriate for a government to suggest that an adult should have to rely on their parents to go out and live their life, to be able to do the basic, essential things that this support enables. You shouldn't have to ring up your mum and dad every time you need to buy food or go to the pharmacy. That's not something that should be required of disabled people. It flies in the face of the independence and dignity promised when the NDIS was established.

But let's put that to the side for a moment. They said the family should do the support. They didn't take into account that the participant had moved from where she lived in Esperance in Western Australia to Perth. Her husband is a FIFO worker, and she has a child, so she's the carer for the child when he's away. The family that the government believed should provide the support remain in Esperance, some 700 kilometres away. Yet, under the new plan she was given, they should provide the support. This woman sat before us in tears talking about the impact of this on her life.

This bill and these ministerial powers will enable a minister in Canberra to take those four hours of support and cut them down to two. Does that seem reasonable to anyone in this chamber? Does it seem necessary to make those cuts in a context where we could simply tax gas exports in this country and raise far more than the government intends to with these cuts? I don't think it does. I think that most people would listen to that story and be horrified. That is what the agency is already doing, in a context where, currently, there are some processes for review and appeal when these kinds of nonsensical decisions are made. What this power does is sweep all of that aside and just put the power into the hands of a minister in Canberra to make that unilateral cut, with no recourse.

The amendments that we are offering to the Senate this afternoon are a response to that. They are an attempt to address an element of the danger created by that and to demonstrate to the community that the Greens members of the committee listened to the concerns given to the committee. So I ask the minister: does this amendment have your government's support?

Jenny McAllister (NSW, Australian Labor Party, Minister for the National Disability Insurance Scheme) | Link to this | Hansard source

The government will not be supporting the amendments moved by Senator Steele-John. I might take the time that's allotted to me to explain a little about the approach the government has taken to the reforms overall and the reason why Senator Steele-John's amendments are not amendments we can support.

The NDIS is something that Australians are very proud of. It is a scheme that was established after a long campaign led by disabled people and supported by trade unions, by civil society and ultimately by the Labor Party in this place. They campaigned to establish a scheme that would change the lives of many thousands of Australians. We stand by the wisdom of that decision. This has been a life-changing scheme.

I remember in around 2001, as a much younger woman, being in a meeting with a range of people who were caring for people with significant disability in a regional community and, at that time, listening to the fear, the anxiety and the anger in that community of people and their sense that they had been left behind. At that time, I remember thinking, 'If we win government this time, in 2001, then we have to do something about this.' We didn't win government in 2001, but we did win government in 2007, and we started work on putting in place supports that would allow disabled people to live lives of dignity with independence, with choice and with control, to be truly included and to be treated with respect.

All of those things are reasons why this scheme must continue into the future. But, the truth is—at times it is important to have honest but difficult conversations—this scheme is off track. It is well off track. Without intervention, the scheme is projected to cost more than $100 billion a year by the middle of next decade. It would increase to something in the order of 2.3 per cent of GDP. It's the government's view that that is not a circumstance that the community supports. The reason it's increasing in this way is that many of the ordinary boundaries that sit around a social program have not been put in place for this scheme. Our view is that the scheme needs to be sustainable—and that means making changes.

I understand the Greens political party have a different view. The dissenting report that Senator Steele-John and his colleagues co-authored as part of the committee inquiry into this bill indicated that they thought this scheme should be fully funded. I take from that that the Greens political party has no concerns about the scheme reaching $100 billion a year by the middle of the next decade, and I take from Senator Steele-John's comments now that the reason he thinks that is fine is that it could be funded by other means—perhaps a gas tax. This gas tax, which is advocated for by those at the other end of the chamber, was costed by the PBO, as I understand it, to raise around $17 billion a year. I have heard the Greens political party commit that money to dental. I have heard the Greens political party commit that money to public education. I've heard them commit it to clean energy. I've heard them say it should be used for welfare reform. This doesn't suggest a serious approach to public finance. It doesn't suggest a serious response to the challenges that we think this scheme faces in terms of sustainability. For that reason, we do not support the amendments proposed, which would remove one of the measures that the government proposes to start to manage the sustainability issues that genuinely confront this scheme.

The amendments before us from Senator Steele-John would remove support determinations from the bill. Support determinations are intended to be used by the government to limit the funding available through social and community participation funds. Total spend on social and community participation alone at the moment is $12 billion a year. That is quadruple the level it was in 2019-20. It is close to what we spend on the PBS each year. In the absence of any action, this would have grown to around $18 billion by the end of the decade—so changes are necessary to secure the future of the scheme.

The amendments Senator Steele-John proposes would remove our ability to address this cost growth and limit our ability to establish clear and consistent approaches to determining funding for particular NDIS supports. We think this capacity is a sensible and reasonable capacity for any government to possess. The ability to prescribe funding methodologies and maximum funding amounts through a legislative instrument is an ordinary way to manage a social program, and it provides flexibility to respond to changing circumstances and emerging evidence about the efficacy of supports. It also retains parliamentary oversight. It's done by way of a legislative instrument, and it will support a more transparent and a more consistent approach to determining participant funding.

Jordon Steele-John (WA, Australian Greens) | Link to this | Hansard source

Given the minister has indicated that the government will not be supporting our amendments, which would strip from the bill this unjustifiable concentration of power being taken from people with disability and our families to advocate for individualised supports that reflect their actual needs and being placed in the hands of ministers and bureaucrats in Canberra—we heard from the minister, in their contribution there, that they will not be listening to the community, who have raised such serious concerns about this element of the bill.

So it falls on this chamber to consider what safeguards might be put in place to ensure that, if and when a participant's safety is impacted by these unilateral cuts made by politicians, the person impacted can appeal it, raise it or flag it and potentially see if they can get some kind of action or recourse—something—to protect their safety. Surely we owe disabled people, as well as their families, who will now be subject to this unprecedented political control over their lives and ability to live—never knowing, day to day, whether the minister of the moment or the government of the day may seek to cut it further.

The government have said, 'We will cut this funding by 50 per cent.' The bill says nothing in relation to limiting it to 50 per cent. In fact, it's really clear that this legislation gives the power to the government of the day, the minister of the day, to cut up to 99.99 per cent of the funding that you might rely on to get your shopping or to go to the pharmacist. But there you go. Labor say, 'We need those powers,' and they've said really clearly that they will not support the amendments put up by the Greens to strip those powers out of the bill. I think, if the dirty deal is anything to go by, the Liberal Party are going to back them in on that, so we turn to safeguards.

I don't know about you, but I don't trust politicians in Canberra to make the right call 100 per cent of the time. I don't trust this government's ability to see the impacts that its cuts might have on every single one of the participants, the people, impacted by this. I don't trust them to know whether or not these cuts will do harm or risk safety. The proposal that we will put forward includes amendments which would create an avenue for a participant whose safety is impacted to be able to appeal or flag the impact and safety risk of the cut that the government has just made to their vital funding and create a chance, through a process of review, to have that vital funding restored.

The government has previously said, and I want to go directly to what it has said in relation to this, that if a support determination affects a person's safety or wellbeing they can apply for a plan variation or plan reassessment. I read this and I had to stifle a bark of callous laughter, because this is the kind of statement that makes you think that this government doesn't really believe that disabled people do the work or that advocates and experts have read the act forwards and backwards and understand the legislation better than anybody in government probably ever will. We live and die on this stuff.

We know that the legislation brought by the government cuts down on the already very narrow circumstances under which a participant can request either a variation or a reassessment and puts in place a certain number of criteria for when you can and cannot request a variation or reassessment. And who would have thunk it—being impacted by a ministerial support determination in a way that adversely impacts your safety is not currently one of the criteria upon which you can request either a variation or a reassessment. So we will be bringing an amendment to offer an escalation pathway to address this risk to the safety of disabled people.

I will put this question to the minister: is it true that the bill, as written, means that people cannot request an unscheduled reassessment if they have been affected by a support determination?

Jenny McAllister (NSW, Australian Labor Party, Minister for the National Disability Insurance Scheme) | Link to this | Hansard source

Senator Steele-John, I thank you for your contribution just now. I want to address a number of matters which you raised earlier before coming to your direct question. I think the important point that hasn't yet been canvassed is that, in making a support determination, the minister must have regard to advice about safety. Of course, that's an appropriate safeguard to exist in legislation. It is a legal obligation on the minister to consider the impacts on safety that any such determination would have.

You mentioned also the approach to unscheduled reassessments, and it is true that the bill sets out clear criteria that give participants guidance about when an unscheduled reassessment will be considered by the agency. They are the kinds of things that you would think would ordinarily trigger a reassessment: a change in a person's functional capacity, a change in their health or their mobility, perhaps, or a change in their external circumstances—perhaps a change of address or a move from school to employment. It is these kinds of things. But you're right that, as drafted, it doesn't create a specific pathway for a person to make a request based on a support determination.

You'll know, I think, that the government's been very clear from the outset that we do seek to safeguard against risks to participant health and safety, particularly for NDIS participants who require 24-hour support and care. The explanatory memorandum indicates that the intent is to exclude supports that are essential to a participant's health, safety or continuous 24/7 care and support. We've been very grateful for the many advocates who've engaged with us on this commitment because operationalising those arrangements requires engaging with the people who know the scheme best. As you indicated in your contribution, Senator Steele-John, we recognise that participants and their advocates can provide us with very good advice about how best to do this, and we have been listening carefully to what they've had to tell us in the months since the bill was introduced.

The government will be moving an amendment to establish a new plan variation pathway for participants who have high support needs. Those amendments should be circulated in the chamber shortly. Indeed, I had thought that they would have been by now. I've authorised them for distribution.

Senator Steele-John, you were generous enough to share your thinking about this matter with Minister Butler's office. You and I have had the opportunity to discuss your thinking about this also, and I acknowledge the work that you and your team have done to also think through how to operationalise such a pathway for escalation. I don't want to get ahead of debate on that particular amendment, but, in response to your question, I wanted to acknowledge the work that you have done and the advocacy from many people in the community around this question and to confirm that the government will be moving an amendment of that kind later in the course of debate.

Jordon Steele-John (WA, Australian Greens) | Link to this | Hansard source

Thank you very much. I and my team look forward to seeing those amendments in detail.

I'll move to one of the clearest pieces of feedback that we received as an inquiry in relation to concerns from the disability community. There are a number of concerns that have been flagged repeatedly with the government, and they have been flagged in the spirit of a genuine attempt to ensure that there is an understanding in government about the dangers of the legislation that they are putting forward. That is why I will turn to the new definition of permanence established in this legislation. The act, as currently written, requires a disabled person to demonstrate the permanence of their disability in a new way, and it gives the power to the minister and government of the day to define for disabled people—not for individual disabled people but entire cohorts of our community—what constitutes having sought or undertaken all appropriate treatments to, for want of a better word, cure yourself of your condition before then making an application to be on the NDIS.

Let me be really clear what this is: this is a government having the power to decide what, in their political view, are the appropriate treatments for a person to have undertaken to demonstrate that we have tried hard enough to cure ourselves of our disability before we then apply for the NDIS. Because the government, in other parts of this law, put in place a process through which all participants on the scheme will eventually be reassessed for their eligibility, this is something that will affect every single participant in the scheme.

There has been so much alarm raised by the disability community about these powers—again, ministerial powers—because of the very way in which this law has been written. This is not an ideological debate or abstract debate about the appropriate role of government. These are concerns that spring specifically from the way the act is written and what is written into the law. The law that Labor has written says that, in determining what an appropriate treatment to require a disabled person to undergo before they access the scheme is, questions of whether that treatment would constitute a financial burden, is geographically available or is appropriate in the broader circumstances of the individual, are things which the minister of the day is prevented from considering when defining what is appropriate.

This means whether or not the treatment is something that can be afforded is not considered, and whether or not it is something that is available is not considered. That means that, if you are a disabled person living in Kununurra, in Western Australia, you can be subjected by your government to a requirement that, before you get access to the vital disability supports that you need or in order to continue accessing the vital disability supports you already have, you undergo an 'appropriate' treatment as defined by your government. The fact that treatment is not available anywhere other than Perth is irrelevant. The fact that you can't afford the gap fee—irrelevant. There's the fact that you may be a single mum of three kids who would be happy to undertake the treatment—potentially, could even afford it—but you've got nobody to look after the kids while you recover. Those are factors which the minister is not required to consider under this law, as it is written, right now.

The governmental response to this concern—I am very sorry, but I'm going to use this language specifically and intentionally—has been gaslighting. They've gaslit the disabled community, again and again, because Labor have said: 'You're anxious over nothing. There's no power to require anything in this legislation. Show me the word "requirement". It's nowhere in the bill.' That's rubbish.

When it comes to if you live or die, based on the disability supports you've got right now, like the person that helps you get out of bed in the morning to have a shower, to get your food in, to go to the pharmacy, to keep your job or just live—does anyone really believe, when faced with the question of whether or not you can continue to receive those things, that just because there isn't the word 'requirement', there isn't coercion occurring?

When faced with the requirement to undertake a treatment, there's the box you've got to tick which says, 'Oh, yes, I've tried that treatment.' You can't get the NDIS if you haven't ticked that box. Does anyone really believe, in that moment, that they aren't being required by their government to undertake that treatment and that they aren't being coerced by their government to undertake that treatment? Come on, be serious. Does anybody really think that that's a fair thing to do to people? That's a fair response to that concern, particularly when you have written this part of your law in such a broad way.

We heard, as a committee, from experts and advocates, that these powers could enable a minister to require a participant with a psychosocial disability to undergo electroshock therapy before accessing the scheme. And, again, what was the response to that concern? I watched it happen live. There was horror in the faces of the Labor committee members; they were scrambling for some type of response. I watched it happen live. What was the response? 'Oh, we've been very clear that's not the government's intent. We're writing rules to make sure that won't happen.' Well, whoop-de-do. You're writing rules—rules that can be, using your legislation, rewritten by a subsequent minister or, indeed, a subsequent government.

Minister, what are people in rural WA meant to do if they are told they must undergo a treatment that is only available in Melbourne and that they won't be allowed to access the NDIS if they don't get the treatment?

Jenny McAllister (NSW, Australian Labor Party, Minister for the National Disability Insurance Scheme) | Link to this | Hansard source

One of the observations I've made in debating this bill is that it is important for us to deal with what is actually in the bill rather than with what people fear may be in the bill or in some future bill. Regrettably, it has not always been the case that everyone's observed that in the way that they have discussed provisions in the bill. Many of the things Senator Steele-John has set out just now are not features of the bill.

I want to step through what is actually proposed, in terms of both the policy intent and what's in the legislation. I think the first thing to say is that, from the very outset, the NDIS was never intended to replace the health system—nor, in fact, was it intended to replace the education system or the transport system. All of these other systems run by governments ought to be available to people with disability. They ought to be inclusive. Governments did not establish the NDIS so that they could walk away from their responsibilities in other systems. So health systems should be available as a matter of course to people with disability, and they should be safe and inclusive.

The impact analysis for the bill draws a really important distinction about some of the health conditions that afflict people. It draws the distinction between a condition that is irreversible and produces a permanent functional impairment, and a condition that's enduring. Where a person has an enduring condition that is treatable, we would like them to be treated. The NDIS has always been there for people with permanent disability, and it has always been the case that a person seeking access to the NDIS had to demonstrate that their impairment was permanent. This isn't a new feature of the scheme. But it is the case that the process by which that permanency is assessed wasn't made clear in the legislation. So this bill provides greater legislative clarity about how permanency will be assessed. It elevates into the act a principle that is already in the NDIS rules. As I indicated in my earlier contribution, it is part of the normal architecture of a government social program.

The criteria to become a participant in the NDIS should be clear so that people can navigate those arrangements with clarity. This was an observation also made by the independent review of the NDIS, which told us that people with disability, families and advocates wanted greater certainty around the access process. We also heard that people were often seeking additional diagnoses or specialist reports, sometimes at significant personal cost, to demonstrate that they met access criteria. So the independent review recommended strengthening and clarifying the legislative framework around permanency, and that is what is happening in the bill that is before this chamber.

Senator Steele-John indicated in his contribution that a person who's already on the scheme might be required to obtain subsequent treatment. That is not what the legislation requires; it is prospective only. So a person seeking access would need to demonstrate, if there were a treatment that would reduce their impairment such that they didn't meet the access test, that they had pursued it. But that doesn't apply to people who have already gained access to the scheme.

We've also been clear that advice would be sought from a treating medical professional, including advice about whether there's a medical reason that a particular person cannot undertake a medical treatment that might otherwise be appropriate. In developing the rules for implementation of this provision, we would intend to closely consult with people with disability, representative organisations and the broader disability community.

Senator Steele-John indicated, I think, a level of cynicism—perhaps I could say—about the process of rule making in this parliament. For people listening, rule making under legislation is a serious business. When a disallowable instrument is made, it is brought before this chamber and it's possible for this Senate to debate it and to void it. The rules that Senator Steele-John considers inadequate would be scrutinised by this parliament. There has been a lot of concern and misinformation in the community regarding the possibility that this legislation would enable the use of restrictive practices. Page 68 of the revised explanatory memorandum clarifies that 'appropriate treatment does not include restrictive practices involving seclusion, chemical restraint, mechanical restraint, physical restraint or environmental restraint'. It also makes clear that an available treatment would be one that is funded through public health arrangements such as the MBS.

I simply want to return to the basic principle that a scheme of this kind and this importance needs to have clear guidelines around it in terms of who is eligible for the scheme and also the supports that are available to them. The provisions that are in the bill around permanence elevate existing policy settings into the legislation to create that clarity for participants and also for the general community.

Jordon Steele-John (WA, Australian Greens) | Link to this | Hansard source

We've just heard from the minister in their response a continuation of a set of statements about this legislation that are incorrect and deeply concern the disability community because they continue to demonstrate that the government do not quite understand or do not wish to engage with the legislation they themselves have written. I want to be really, really clear for the parliamentary record and for anyone following this debate—and I know we've only got 10 minutes or so before we come out of the committee stage.

The legislation, as currently written, empowers the minister to make rules in relation to what is and is not an appropriate treatment. An appropriate treatment is a treatment which will be necessary for the participant to have demonstrated they have undergone or completed before they are able to access the National Disability Insurance Scheme. The bill further goes on to define what can and cannot be considered by the minister when deciding—when making the rules—about what is and is not an appropriate treatment. They are prevented by the legislation from considering: Is the treatment too expensive? Is it available in the geography in which the participant who is applying resides? Is it appropriate to their social or environmental circumstances? That's the bill you've got, folks. The additional protection outlined by the minister, that an appropriate treatment may not be a restrictive practice and must be a treatment funded under Medicare, is the result of a Greens' amendment passed in the House. Those were not the original words of this legislation. I am incredibly proud that they are now words within the law, but they're not there because the government wanted to put them there. They are there as a result of a Greens' amendment moved to this law in the House of Representatives.

I also wish to make very clear that, when we are considering legislation, it is our responsibility as members of parliament to consider what can be done—what may be done with the powers granted to a government—within that law. And we cannot take the word of the government of the day as to how that law will be used. Intention is irrelevant in a context where a law sits on the books to be used by a government or a minister with a different intention. The concern of the community is that these powers, if used by a minister or a government with an intention to rewrite any rules that might be made by this government, they could, in fact, rewrite them. Ministers are not bound by the rules they make. They are the ones empowered to make and remake those rules. They may be required to consult in the process of making those rules but, ultimately, it is their decision. It is within their power, and that power is then held over the heads of the person who will be required to jump through the hoop that the minister decides—not the person, not their treating professional, but the minister of the day.

That is the concern of the community. That is what has been articulated by experts giving evidence at the inquiry. Those are the fears that have been shared, and they are well founded in fact and in an accurate reading of the law. The government may seek to distract from that reality, but they cannot distract from the words they have written into their own legislation, because it is as clear as day.

If they wanted to place more limitations on those powers, then they could. If they wanted to require that any minister in the future could not mandate an appropriate treatment—if it were, say, a treatment where the wait list was longer than 12 months—they could require that. If they wanted to require that an appropriate treatment could not be a treatment that constituted a financial burden upon the participant, they could do that too. Hell, they could amend their own legislation to remove the aspects of the law that currently prevent the minister from taking issues such as financial burden and geography into consideration. These are all things the government could do, and yet they are refusing to take the opportunity to clarify and to implement.

The NDIS from its very beginning, from its original establishment, has been based on the idea that a disabled person should be able to access individualised supports that meet their specific needs, and that those individualised supports should be reasonable and necessary, and that what constitutes a reasonable and necessary support should be decided on a case-by-case basis because disabled people are not all the same. We do not fit into tiny little boxes. Even though that annoys government, politicians and bureaucrats, that is the reality. That is why the principle that people should be able to access reasonable and necessary individualised supports was placed within the foundational act of the National Disability Insurance Scheme. This legislation rips that heartstring out of the scheme and replaces it with government mandate, with government control and with ministers in offices in Canberra making the decisions, having the power, deciding for you and doing everything about you without you. We will be moving an amendment to safeguard this foundational principle because it is vital.

Progress reported.

Dave Sharma (NSW, Liberal Party, Shadow Assistant Minister for Citizenship and Multicultural Affairs) | Link to this | Hansard source

It being 1.30 pm, we will now move to two-minute statements.